5.  The applicant company is a limited liability company established under Austrian law with its registered office in Innsbruck.
6.  It publishes Bezirksblatt, Lokalausgabe Hall/Rum (“the Bezirksblatt”), a weekly newspaper distributed free of charge in a region of Tyrol. One edition of the newspaper had 17,440 copies circulated.
7.  In January 2006 approximately 300 copies of an anonymous letter were sent out, many of them to members of the supervisory board of the tourism association for Hall and Wattens, two towns in Tyrol. The letter, written in the form of a survey, concerned C.M. and J.M, referred to as “M&M” on account of the initial letter of their surname.
8.  C.M. was at the time a practising lawyer and chairman of the tourism association for Hall and Wattens. When the article was published, elections for the post of chairman of the tourism association were underway and C.M. was again standing as a candidate for the post. His brother J.M., also a practising lawyer, had been active in politics in Hall for many years, and was at the material time the member of the City Council responsible for public finance. He was also chairman of the supervisory board of Stadtwerke Hall, the town’s electricity, water and heating supplier.
9.  The “survey” part of the letter read:
“In the course of our M&M survey, I would like to ask you the following questions: 1.  Would you buy a car from this man? 2. Would you stake your money on a promise made by this man? 3. Does this man have the necessary personal/ professional qualifications? 4. Has this man ever built anything properly? 5. Is this man honest with his own family? 6. Would you allow this man to execute your will?
If you have answered one of these questions with ‘no’, please ask yourself why you want to leave this man in his current position. We, being entrepreneurs, will decide at the next tourism association meeting with our votes. It is our promise, our money, our qualification, our association and our heritage! ...”
10.  L., a journalist working for the applicant company’s newspaper, was informed of the anonymous letter. He telephoned C.M. and J.M., who commented on it, claiming it to be part of a political campaign against them. A few minutes later, C.M. telephoned the journalist back and asked him whether he was planning to publish the letter. When L. confirmed that he was, C.M. said that he did not agree to its publication and that he would take legal action if it were published.
11.  In the 18 January 2006 issue of the Bezirksblatt, the applicant company published an article entitled “Anonymous campaign against M&M”. The subheading read “M&M or [C.M.’s and J.M.’s full surname] are the target of a not at all bittersweet campaign”. The article contained the story of the anonymous letter and C.M.’s and J.M.’s replies to the accusations made in it. It reported that both of them had stated that the letter had attempted to harm their political activities and had considered the accusations to be a personal insult. The article contained photos of C.M. and J.M. and a reproduction of the letter containing the questions set out above.
12.  Relying on section 6 of the Media Act, C.M. and J.M. brought proceedings against the applicant company for defamation, requesting compensation and publication of the judgment. The applicant company argued that its conduct did not amount to defamation, as the article had only quoted someone else’s statements and had duly distanced itself from the contents of the letter. Moreover, the information had been a matter of public interest.
13.  On 24 March 2006 the Innsbruck Regional Court found in favour of the claimants and ordered the applicant company to publish the judgment and to pay EUR 2,000 in compensation to each of them.
14.  The Regional Court held that the article itself merely commented on the letter in an objective manner and did not agree with its offensive content. Furthermore, the nature of the offices held by the claimants meant that they were often in the local media, but had so far not been the subject of any negative campaign. However, the anonymous letter, which had been included in the article, fulfilled the actus reus of defamation, as it accused C.M. and J.M. of dishonesty and other disreputable character traits, relating to both their professional and private lives. Both had experienced negative repercussions as a result of the article in their professional activities as lawyers, in that they had repeatedly been confronted with the allegations made in the anonymous letter.
15.  The Regional Court, referring to the applicant company’s argument that it had only quoted a statement made by someone else, noted that section 6(2)(4) of the Media Act only permitted quoting the statement of a third person if the quotation was truthful and there was an overriding public interest in its publication. This rule would even apply if the identity of the third person having made the statement was unknown. In any case, the court held that it was required to balance the public interest in disseminating information about the statements quoted against the claimants’ interest in protecting their reputation. It accepted that the local public had an interest in knowing about a campaign against the chairman of the tourism association and a local politician. However, public interest did not justify reproduction of the anonymous letter in the article. The applicant company could have provided information on the campaign against C.M. and J.M. without printing the defamatory letter. In that connection, the court observed that by printing the letter the applicant had also made its entire content known to a far greater number of people than the letter itself had reached.
16.  The applicant company appealed and lodged a plea of nullity, relying on the Media Act, in particular, on the so-called “law on quotations” developed under section 6(2)(4) of that Act. It asserted that the Regional Court had wrongly considered there to be no overriding public interest in publishing the anonymous letter. In particular, the article and the letter related to the tourism association, which was a public law corporation, and the applicants were both public figures in local politics.
17.  The Innsbruck Court of Appeal dismissed the appeal on 10 August 2006. It held that the law on quotations was not applicable in the present case. It was not possible to claim for damages under Article 6 of the Media Act in respect of quotations in the media where the identity of the third person making the offensive statements was known. In such cases, the person concerned could seek compensation from the person who had made the offensive statements in the first place. As in the present case the person who had made the offensive statements had remained anonymous, the applicant company could not rely on section 6(2)(4) of the Media Act. Furthermore the Court of Appeal, confirming the Regional Court’s view, found that in any event there was no overriding public interest in publication of the anonymous letter.
18.  The judgment was served on the applicant’s counsel on 3 January 2007.